The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Wednesday, September 17, 2003

Even the LA Times (no-charge registration req'd) says the cure is worse than the disease. That puts me with unaccustomed company, but I'll try to add to the stylistic criticisms that I blogged tentatively in the wee small hours yesterday to explain why I think the decision of a three-judge Ninth Circuit panel in the California recall case, Southwest Voter Registration Education Project v. Shelley, is so badly wrong.

Bush v. Gore this ain't

In Wednesday's NYT, liberal Yale law professor (a redundancy) Bruce Ackerman, author of a book about the Supreme Court's 2000 decision in Bush v. Gore, urges the full Ninth Circuit to overturn the Shelley panel. While I agree with Professor Ackerman's conclusion, and also with a similar op ed in the Wall Street Journal by Harvard Law Professor Einer Elhauge, I think Robert Alt had a much better explanation of why Bush v. Gore has been misinterpreted and misused by the Shelley panel:

Bush v. Gore was not about the use of punchcard ballots, even though Florida counties, like California, used both punchcards and optical-scan ballots. Rather, the Equal Protection claim in Bush v. Gore concerned the way in which the recount was implemented. The Court made clear that different counties could use different systems for carrying out elections, but they could not treat similar ballots differently:

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

Put simply, the Bush v. Gore ruling was not based on the fact that the counties used different voting systems. Rather, the Equal Protection claim rested on the fact that the Florida supreme court had forced a recall without providing safeguards — a brash act which led to similar punchcard ballots being counted differently even within the same county. It was this act of treating similar ballots differently which triggered the Equal Protection violation, not the fact that punchcards were used in one place and not in others.

I have nothing to add to this and doubt I could have said it as well. But I do have two other substantial criticisms of the Shelley panel's opinion.

Appellate courts aren't supposed to be factfinders

First, the Shelley panel acted as if it were the trial court — that is, as if it, and not the district court, had the duty to sort through the evidence and decide what facts would likely be established in a full-blown ultimate trial-on-the-merits in this case. The panel therefore felt itself free to accept as factual the most extreme predictions of the witnesses who testified in the district court's proceedings — hence the startling, and almost certainly exaggerated, statement in the third sentence of the opinion that the "inherent defects in the [punch card] system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all."

In appeals from preliminary injunction hearings, appellate judges aren't free to substitute their own view of the facts for the findings of the district court unless the district court's factual findings were "clearly erroneous."{note1} The Shelley panel cited this rule at page 15 of its opinion, but then refused to actually apply it — and indeed, clearly violated it. References in the panel's discussion to the findings of fact made by the district court are extremely rare. That in itself is a blatant tip-off that the panel is selectively picking and choosing evidence from the record without regard to whether the district judge found that evidence to be persuasive.

But such few references as there are to the district court's factual findings indicate that the panel not only rejected them without cause, but then proceeded to build further inferences upon disputed factual assertions that were rejected by the district court. At page 26, for instance, the panel simply dismisses the district judge's factual finding that voter education efforts could have the effect of lowering the error rate, saying "Plaintiffs effectively countered this unsupported assertion with statistical evidence." Well, folks, I'm sorry, but if there's competing evidence, it's for the district court to resolve the conflict — it's not the court of appeals' job to decide whether the Plaintiffs "effectively countered" or not.

My first hint that this was going on was on page six of the opinion when I read that "just as the black and white fava bean voting system of revolutionary times was replaced by paper balloting ...." Eh? This sounds like a law clerk who's been looking for his facts on Google, not from the trial court record. And not too carefully, either: fava beans were used for voting in ancient Greece. But I seriously doubt that proof about fava beans, either classical or revolutionary, was anywhere amongst the evidence submitted in the district court.

Another clue was when the author of the Shelley panel opinion used an out-of-context factual statement from another case as if it were evidence in this one: "As the Supreme Court observed in Bush: 'This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter.'" Well, yes, that may have been among the findings of fact in the Bush case two years ago — but that's not part of the record in this case, and you just don't decide appeals by plucking facts hither and yon from other appellate decisions.

Can you imagine reading this from an appellate court?

We note that in Smith v. State, there was evidence that the murder weapon used by the defendant in that case, a Smith & Wesson .45-caliber revolver, had a 'hair trigger.' In this appeal brought by Defendant-Appellant Johnson, although there was no evidence introduced regarding pistols or triggers during his trial, we therefore conclude that all Smith & Wessons have hair triggers, that Johnson must have known of that, and that he therefore intended to kill his victim and accordingly deserves the gas chamber.

This is not the way appellate courts routinely do their business, thank goodness! And the out-of-context, improper cross-use of facts in this manner further suggests an eagerness to overuse the Bush v. Gore opinion to the point of mis-use — perhaps out of a sense of partisan glee (as Dahlia Lithwick has suggested in Slate), rather than reverence for and adherence to legal precedent from the Supreme Court.

The circuit judge for whom I clerked often reminded us, "Yes, we're smart, boys and girls, but we didn't see the witnesses and we didn't hear the evidence. The district judge is smart too, and he was at the trial! Let him do his job, and make sure we stick to our own!" Strict observance of and adherence to the different functions of trial courts and appellate courts is a hallmark not just of judicial conservatism, but of judicial professionalism — and that's a quality which is entirely missing from the Shelley opinion.

This lack of deference to the factfinding role of the trial court is an arrogant mistake, one that reveals a result-oriented panel. And this in turn explains in part how the Shelley panel went so far wrong in the various "balancing tests" that injunction law prescribes. If you slant the facts to accept the worst-case scenario offered up by one side, obviously it's going to skew any balancing exercise.

I don't have access to the trial court's record, of course, nor have I seen whatever written findings of fact and conclusions of law the trial court issued. But I suspect that the trial court concluded that the margin of error likely to occur with punch card machines — especially after the promised voter education campaign ("Here's how to avoid leaving hanging or dimpled chads") — was not significantly different than that which would be likely to occur with other methods, especially if those methods involved new technology being used for the first time. (Prof. Eugene Volokh has pointed out the likelihood of problems with such other methods.) If that's the factual basis you're proceeding from, then the need for a mind-bogglingly disruptive injunction seems considerably less acute.

Constitutions do more than "highlight" the public interest for all-knowing federal courts to follow or not at their whim

Which leads me to my second main criticism: the panel values its own views of what's important over that which the people of California — speaking through their most solemn and powerful legal voice, their state constitution — have declared to be important.

The panel pounces on the fact that as a result of a settlement in prior punchcard litigation, "the State has conceded the deficiencies in the systems and agreed to remedy the deficiencies by the next statewide election." Well, yeah — and the deal cut to resolve that challenge was that in the meantime, punch cards would be okay. Later in the opinion, the panel jumps through some hoops to declare that compromise meaningless, but first (at pp. 31-32), the panel decides that the schedule hardwired into the California Constitution just doesn't much matter:

The only potential justification [for proceeding as scheduled] is that the California Constitution requires that a recall election be held within sixty days of certification by the Secretary of State.... [But had] the recall petition been certified just a month and a half later than it was, the recall election would have been scheduled to take place not within sixty to eighty days as provided in the California Constitution, art. II, § 15(a), but instead in March 2004 under the California Constitution, art. II, § 15(b).

Well, yeah, and if frogs had wings they wouldn't bump their butts on the ground every time they jump. Woulda, coulda, shoulda, mighta — but didn't. Painting imaginary scenarios, and then saying, "Well, what we're ordering wouldn't be so different from that," isn't good judging. But the panel's disdain for the actual doesn't stop there.

The panel has to let us know (at page 52) just how smart it is, and just how stupid the voters who approved this schedule as part of the California Constitution were:

The district court placed dispositive weight on the public interest in complying with state election law.... However, the district court erred in treating this state interest as if it were a large part of the public interest. An abstract interest in strict compliance with the letter of state law is a strong state interest, but it is a less important public interest in the context of challenges to state law under the equal protection clause of the Fourteenth Amendment. Of course, the public has an interest in lively public debate, being informed of political issues, orderly elections, speed in resolving challenges to officials, confidence in fair elections, and the like, and many state election laws are designed to promote these interests.... But it is the principles and spirit of these state laws, not necessarily the letter, that deserve weight in examining the public interest.

(Italics added by Beldar.) Beware! Beware the lawyer — much less the judge — who denigrates the letter of the law! Laws have letters. Laws are written to be precise and meaningful and something people can rely upon, especially when they're put into constitutions. Harvard's Larry Tribe, writing an op ed in the Wall Street Journal, calls the sixty-day requirement of the California Constitution "a purely arbitrary, artificial deadline." Well, yes, if you're a philosopher-king who's smarter than everyone else, I suppose all deadlines do seem arbitrary and artificial. That's one reason we don't have kings in this country — we have constitutions instead.

A bit later (at page 54), the Shelley panel finally confirms just how meaningless all that "letter of the law" stuff really is:

The appropriate examination of the public interest in this context will instead place heavy weight on the principles underlying state law. Those principles of fair and efficient self governance belong in a court's assesment of the public interest regardless of the presence of state elections laws motivated by them. State election law can merely highlight for a court which of those democratic principles the people of a State hold in particularly high regard.

We federal judges know what you really want. We federal judges know what you really need. We federal judges know what you really meant. We federal judges know what is really good for you! When you say in your state constitution "sixty days," we know you didn't really mean sixty days. You really meant "sixty days (unless three unelected guys with lifetime appointments decide six months would be better)." Any statute you pass, any constitution you write, any petition you sign, any vote you cast — these, at best, are "merely highlights" for us to consider, for us to reject or follow at our whim.All your base are belong to us!

Fetch these judges some litter-bearers, please, and have the slaves begin to peel some grapes! They've shown us who's boss on the Left Coast, and it's definitely not the voters.

UPDATE (Thu Sep 18 @ wee small hours): I just found the district court's 29-page opinion, which I'll take a close look at tomorrow. Dollars to donuts there are fact findings in it that the panel opinion ignored.

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UPDATE (Thu Sep 18 @ 8:30am): It's a good thing no one took me up on my dollars and donuts bet. The district court combined the plaintiffs' applications for temporary restraining order and for preliminary injunction into one proceeding and apparently made its decision without an evidentiary hearing. Its opinion is, frankly, extremely disappointing. It contains no explicit findings of fact, and indeed its discussion of the facts was substantially less detailed than that of the Ninth Circuit panel. With all due respect, this district judge could use some pointers on "how to write decisions so as to avoid reversal" — it's something of an art form, but not that hard to master.

That doesn't make what the panel did with the facts right, especially when it strayed outside the record of even the written evidence (affidavits/declarations and attachments) that were submitted in the trial court. But the district court did neither the parties nor itself any favor by failing to hold an evidentiary hearing — even a highly compressed one- or two-day hearing would have been better. This just isn't a "pure law" case, and it's bad lawyering and bad judging to try to decide facts without live testimony that's subject to cross-examination.

Comments

>>The panel pounces on the fact that as a result of a settlement in prior punchcard litigation, "the State has conceded the deficiencies in the systems and agreed to remedy the deficiencies by the next statewide election." Well, yeah — and the deal cut to resolve that challenge was that in the meantime, punch cards would be okay.<<

Now I have no doubt that you accurately depict the panel's statement regarding "deficiencies" in punchcard balloting. However, you may find this letter by former California Secretary of State Bill Jones interesting.

The letter is certainly evidence that the facts (the State has conceded that punchcards have deficiencies) the panel relied on are not accurate. I'm not sure this letter is, as you lawyers like to say, dispositive. Perhaps Mr. Jones was not the only state official involved in the decision making process to eliminate punchcard ballots over time. Perhaps those other state officials *did conclude* that punchcard ballots had deficiencies. I have no evidence of that. All I know is that Mr. Jones disputes a finding of fact by the 9th's panel seemingly attributed to him. I thought you'd find this interesting.

Just replace "-at-" with the "at sign," that lower-case letter A in a circle that you get from typing SHIFT+2. Due to aggressive spam filtering, however, I'm likely to miss your email unless the subject line of your email starts with "BeldarBlog."

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